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President’s Message—continued A big thank you goes out to Keynote Speaker/President
& CEO of IAFE Marla Calico for coming and presenting a great program on Ignite, Excel & Unite to Forge a Path Forward and simply being a part of our Summer/Fall work- shop. Jay Strates from Strates Shows for filling in at the last minute and doing a fabulous job in sharing information about re-opening, Guidelines & Procedures on what’s go- ing on with the midways in the industry at this time and how they are conforming and keeping things safe. Thanks also to Andrew Vandepopulier from Haas &
Wilkerson Insurance for speaking to us about issues relat- ing to COVID-19 and to Samantha Fairlie, Eddie Porcelli & Joe Potillo for speaking on the topic “Let Us Help” on how concessionaires can help fairs get back open. We are grateful to Eilleen Hoffner from the Manatee County Fair for leading a session on Competitive Exhibits and Stacy Wade, GM of the Lake County Fair, for leading our session on Ag & Livestock issues. Special Thanks to our sponsors for making it all possi-
ble: Citrus County Fair, Florida Strawberry Festival, Hard- ee County Fair, Manatee County Fair, North Florida Fair, Northeast Florida Fair, Volusia County Fair, Pasco County Fair, South Florida Fair, Southwest Florida & Lee County Fair, Pepsi, Heritage Park, and Lightning Wireless Solu- tions. But most of all I want to thank you, the fine Fair folks that
took time out of your busy schedule to come and take part in our awesome Summer/Fall workshop. Without you, it would not be possible to gather to grow and learn about our great industry. So, as we move forward this year and into the next we
need to support those fairs that are opening by either go- ing to them or calling them to give them encouraging words. We are hoping everyone is able to open and have prosperous fairs, because we can and will prevail and to- gether we will remain # FAIRSTRONG!
Attorney’s Corner Lance Fuchs
Faircracker FALL 2020
EXPECTING THE UNEXPECTED: COVID-19
CANCELLATIONS AND FORCE MAJEURE CLAUSES By now we are all aware the novel coronavirus disease
(COVID-19) has been declared a worldwide pandemic by the Center of Disease Control and World Health Organization. The pandemic has resulted in staggering declines in busi- ness and a myriad of legal issues arising from canceling or postponing events. You as the reader have likely experi- enced event cancellations or postponements this year, there- by triggering contractual provisions agreed to before COVID- 19 was a thought in our minds. You are probably wondering “what could I have done to
prevent this?” or “what can I do to learn from this moving for- ward?” Regarding the first question, a strong force majeure clause helps identify unforeseeable situations that may arise during the course of performance by the parties, such as a pandemic. A force majeure clause is a contractual provision which excuses one or both parties’ performance obligations when circumstance arise which are beyond the parties’ con- trol and make performance impractical or impossible. In Flori- da, courts interpret these clauses narrowly. Meaning if the event isn’t specifically identified, a court will presume the par- ties didn’t contemplate the event as unforeseeable or the cir- cumstance as one making performance impractical or impos- sible. Therefore, when you consult your attorney about a force majeure clause, it is important to specifically enumerate all unforeseeable events in your contract, including a pan- demic. As to the second question presented above, here are some
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tips that you can do now to mitigate your damages, if you haven’t already. First, review your insurance policies for any exclusions relating to a virus or pandemic. For parties that cannot perform, document all efforts made to hold the event as scheduled and all factors that prevented performance. For parties accepting performance, discuss and provide alter- nate, acceptable methods of performance to the other side. It is also critical to identify notice requirements and deadlines in all contracts. Be sure to consult your attorney regarding rele- vant ticket refund statutes, if applicable. Finally, consider al- ternatives, including holding a virtual or hybrid event if possi- ble.
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